Citation Nr: 1013852
Decision Date: 04/13/10 Archive Date: 04/29/10
DOCKET NO. 04-37 841A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for posttraumatic
stress disorder (PTSD).
2. Entitlement to service connection for a bilateral wrist
disability.
3. Entitlement to an increased disability rating for a
service-connected cervical spine disability, currently
evaluated 20 percent disabling.
4. Entitlement to an increased disability rating for a
service-connected lumbar spine disability, currently
evaluated 40 percent disabling.
5. Entitlement to an increased disability rating for a
service-connected right knee disability, currently evaluated
20 percent disabling.
6. Entitlement to an increased (compensable) disability
rating for service connected prostatitis with epididymitis.
7. Entitlement to an initial rating in excess of 30 percent
for gastroesophageal reflux disease (GERD).
8. Entitlement to an increased disability rating for a right
shoulder disability, currently evaluated as 20 percent
disabling.
ATTORNEY FOR THE BOARD
V. Chiappetta, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Marine
Corps from October 1981 to January 1986.
This matter is before the Board of Veterans' Appeals (the
Board) on appeal of an April 2003 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina. The RO in Cleveland, Ohio
currently has original jurisdiction over the Veteran's
claims.
Procedural history
The Veteran was awarded service connection for prostatitis
with seminal vesiculitis by the RO in May 1986; a 10 percent
disability rating was assigned. This rating was subsequently
reduced to zero percent effective April 1, 1992.
In a June 1987 rating decision, the RO awarded the Veteran
service connection for patellofemoral syndrome of the right
knee, and for strains of the cervical and lumbar spine;
noncompensable (zero percent) disability ratings were
initially assigned for each disability. Subsequently, the
RO increased the Veteran's lumbar spine disability rating to
10 percent disabling, effective June 15, 1989.
In May 2002, the Veteran filed increased rating claims for
his prostatitis, right knee disability, cervical spine,
lumbar spine, and right shoulder disabilities. He also
claimed entitlement to service connection for PTSD, a
bilateral wrist disability, and GERD.
In the above-referenced April 2003 rating decision, the RO
increased the Veteran's lumbar spine disability rating from
10 to 20 percent, increased his cervical spine disability
rating from 0 to 10 percent, and increased his right knee
disability from 0 to 10 percent, each effective May 3, 2002.
The RO also awarded service-connection claim for
gastroesophageal reflux disease (GERD) with a 10 percent
disability rating was assigned effective May 3, 2002, and
denied an increased rating for his right shoulder disability.
The RO also continued the Veteran's noncompensable rating for
his service-connected prostatitis, and denied the Veteran's
service-connection claims for PTSD and a bilateral wrist
disability. The Veteran filed a timely notice of
disagreement and subsequent appeal as to these eight issues.
During the pendency of this appeal, the RO increased the
Veteran's cervical spine disability rating from 10 to 20
percent, increased his lumbar spine disability rating from 20
to 40 percent, increased his right knee disability rating
from 10 to 20 percent, increased his GERD rating to 30
percent, and increased his right shoulder disability to 20
percent. All of these ratings were assigned an effective of
May 3, 2002, the date of receipt of his claim. The Veteran
has indicated continued dissatisfaction with both of these
ratings in subsequent correspondence. See AB v. Brown, 6
Vet. App. 35, 38 (1993) [when a veteran is not granted the
maximum benefit allowable under the VA Schedule for Rating
Disabilities, the pending appeal as to that issue is not
abrogated]. A supplemental statement of the case (SSOC) was
issued in May 2009 by the RO, which continued the denial of 6
of the Veteran's claims, but did not address the claims for
higher evaluations for GERD and a right shoulder disability.
The Veteran was also scheduled to appear for a hearing with a
Veterans Law Judge (VLJ) in September 2009. Prior to this
date, the Veteran contacted the RO and withdrew his hearing
request. See the Veteran's July 31, 2009 Hearing
Confirmation Sheet. The Veteran has not since requested that
the hearing be rescheduled. His hearing request, therefore,
is deemed withdrawn. See 38 C.F.R. §§ 20.702(e); 20.704(e)
(2009).
Issues not on appeal
In a January 2007 rating decision, the RO denied the
Veteran's service connection claims for a left knee
disability, headaches, a mental disability to include bipolar
disorder, schizophrenia paranoid type, and depression, a left
shoulder disability, and asthma. Additionally, the RO denied
the Veteran's claims for special monthly compensation based
on aid and attendance and for loss of use of both lower
extremities, as well as the Veteran's claim for specially
adapted housing. The Veteran initiated, but failed to
perfect an appeal as to each of these issues. Indeed, after
the RO filed its August 2008 statement of the case (SOC), the
Veteran did not submit a substantive appeal (VA Form 9).
Accordingly, these issues are not in appellate status. See
Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to
38 U.S.C.A. § 7105(a), the filing of a notice of disagreement
initiates appellate review in the VA administrative
adjudication process, and the request for appellate review is
completed by the claimant's filing of a substantive appeal
after a statement of the case is issued by VA].
In the January 2008 rating decision, the RO awarded a total
disability rating based on individual unemployability due to
service-connected disabilities (TDIU), and Dependents'
Educational Assistance, each effective May 3, 2002.
Additionally, the RO granted entitlement to special monthly
compensation under 38 U.S.C.A. § 1114(s) from August 26, 2004
to May 1, 2005. To the Board's knowledge, the Veteran has
not disagreed with these decisions or effective dates.
Accordingly, these issues are also not in appellate status.
See Archbold, supra.
All issues are REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
REMAND
After having carefully considered the matter, and for reasons
expressed immediately below, the Board believes that the
issues currently on appeal must be remanded for further
evidentiary development.
Additional medical records
The Veteran submitted a statement dated October 22, 2009
indicated receipt of additional medical treatment for the
disabilities currently being reviewed on appeal.
More specifically, with respect to the Veteran's low back and
bilateral wrist claims, the Veteran stated that he underwent
low back surgery in June 2009, and was about to have right
arm surgery in November 2009. The Veteran also noted that
he still receives home health care from the VA, with two to
three physical therapy sessions each week. The Veteran
specifically requested that the VA obtain his most recent VA
treatment records. See the Veteran's October 22, 2009
Statement in Support of Claim.
Additionally, the Veteran attached three copies of VA Form
4142 to his October 2009 statement, requesting the VA attempt
to obtain private treatment records on his behalf. It does
not appear that the RO has had an opportunity to obtain these
private records as of yet.
Indeed, no medical records dated later than May 2009 [VA or
private] currently exist of record. VA is required to make
reasonable efforts to help a veteran obtain records relevant
to his claim, whether or not the records are in Federal
custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §
3.159(c) (2009). Moreover, it is the duty of the VA to
assist a veteran in obtaining records from Federal agencies,
including VA Medical Centers. See 38 U.S.C.A. § 5103A (West
2002); see also Bell v. Derwinski, 2 Vet. App.
611, 613 (1992). Accordingly, the Board believes the
Veteran's claims should be remanded so that these updated VA
and private treatment records may be obtained.
VA spine examinations
As noted immediately above, the Veteran has indicated that he
underwent low back surgery in June 2009. He also
[mistakenly] noted in his October 2009 statement that he
underwent cervical spine surgery in November 2008. [His
cervical spine surgery in fact took place September 2008].
The severity of the Veteran's service-connected cervical and
lumbar spine disabilities was last evaluated prior to the
Veteran's June 2009 lumbar spine surgery, and only one week
following his September 2008 cervical spine surgery. See the
September 2008 VA examiner's report, page 1. Consequently, a
more contemporaneous depiction of the Veteran's service-
connected cervical and lumbar spine disabilities is required.
See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007),
citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998)
["Where the record does not adequately reveal the current
state of the claimant's disability . . . the fulfillment of
the statutory duty to assist requires a thorough and
contemporaneous medical examination."].
Therefore, after the above-referenced records are obtained,
the Veteran should be scheduled for a VA examination to
determine the current severity of his service-connected spine
disabilities.
Claims for Higher Ratings for GERD and Right Shoulder
Disabilities
In response to the April 2003 assignment of a 10 percent
rating for GERD and denial of a rating in excess of 10
percent for right shoulder disability, the Veteran filed a
notice of disagreement in July 2003. At that time, he
expressed his belief that his GERD warranted a 30 percent
rating and his right shoulder disability warranted a 20
percent rating. The Veteran subsequently perfected an appeal
as to both issues. Following the perfection of his appeal,
the RO issued the January 2008 rating decision, increasing
the Veteran's GERD disability rating from 10 to 30 percent,
and increased the Veteran's right shoulder disability rating
from 10 to 20 percent, both effective May 3, 2002.
The Board notes that the Veteran's 2003 statement in which he
appears to suggest that a 30 percent rating for GERD and 20
percent rating for right shoulder disability was made four
and a half years before he was awarded the higher ratings.
Given this long length of time and the lack of any subsequent
statements following the award of the higher ratings
indicating his satisfaction or dissatisfaction with the
higher ratings, the Board is of the opinion that
clarification from the Veteran is required.
On remand, the Veteran should be asked to indicate whether he
is satisfied with the higher ratings assigned. If the
Veteran either indicates continued dissatisfaction with the
ratings assigned or does not respond to the request for
clarification, the RO should issue a Supplemental Statement
of the Case addressing these issues.
Accordingly, the case is REMANDED to the Veterans Benefits
Administration (VBA) for the following action:
1. VBA should send the Veteran an updated
VCAA notice letter addressing the claims
on appeal.
2. VBA should contact the Veteran and
request that he indicate whether he is
satisfied with the ratings assigned for
his GERD and/or right shoulder
disabilities and wishes to withdraw his
appeal as to those issues. If he
expresses dissatisfaction with either or
both ratings or does not respond to the
request for clarification, the RO must
send him a Supplemental Statement of the
Case addressing these issues.
3. VBA should contact the Veteran and
request that he identify any additional
medical treatment he has received for the
disabilities on appeal since May 2009.
The Veteran should be provided multiple
copies of VA Form 21-4142, Authorization
and Consent to Release Information, and
should be asked to complete these releases
so that VA can obtain private treatment
records on his behalf. VBA should take
appropriate steps to secure copies of any
such treatment reports identified by the
Veteran, to include those already
identified in the Veteran's October 2009
statement, as well as VA treatment records
from May 2009 to the present day which are
not in the record on appeal. Efforts to
obtain these records should also be
memorialized in the Veteran's VA claims
folder.
4. After obtaining any available records
noted above, the VBA should then schedule
the Veteran for a physical examination to
determine the current severity of his
cervical and lumbar spine disabilities.
The Veteran's VA claims folder and a copy
of this Remand should be made available
to, and should be reviewed by the
examiner. The examiner should
specifically identify (1) range of motion
of the Veteran's cervical and lumbar
spine, including motion accompanied by
pain, in degrees; and (2) functional
impairment, including upon repetitive
testing, due to pain, incoordination,
weakened movement, and excess fatigability
on use. The examiner should also
specifically describe all neurological
symptomatology, if any, that is at least
as likely due to the Veteran's service-
connected cervical or lumbar spine
disabilities. A report should be prepared
and associated with the Veteran's VA
claims folder.
5. Following the completion of the
foregoing, and
after undertaking any other development it
deems necessary, the VBA should then
readjudicate the Veteran's service
connection and increased rating claims.
If any of the claims are denied, VBA
should provide the Veteran and his
representative with a supplemental
statement of the case (SSOC) and allow an
appropriate period of time for response.
Thereafter, the claims folder should be
returned to the Board for further
appellate review, if otherwise in order.
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
DAVID L. WIGHT
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).